“I can assure you we won’t give up on this person or persons until we either have them in custody or in the front sight of one of our weapons. I certainly hope the latter is the case.”

Had a remark of that kind been made by a Bardstown resident about an apparently unjustified killing of a citizen by a police officer, it would most likely have been treated as a terroristic threat.

Consider the case of Dominic Aguilar of Roseville, California, whose friend Ernesto Duenez, Jr. was gunned down in his front yard by a police officer named John Moody from the Manteca Police Department. Duenez, a parolee who was suspected in what has been described as a “domestic disturbance,” was ambushed by the officer after pulling into his driveway[5].

Moody, who shot Duenez eleven times, remains on duty after being cleared[6] of wrongdoing by the San Joaquin County District Attorney, who insisted that the officer had legitimate concern for his safety wen Duenez reached inside his truck. Duenez’s family insists that he was trying to disentangle his foot from the seat belt in order to comply with an order to get down on the ground. He was never given a chance to comply: Moody, who had been lurking in his patrol car nearby, opened fire within seven seconds of arriving on the scene, yelling at Duenez to “Drop the knife now!” The police department and DA claim that “forensic video analysis”[7] of the incident shows that Duenez was reaching for a knife, but they adamantly refuse to release the relevant video excerpts to the public.

Duenez’s family[8] established a Facebook page called “Justice for Ernest Duenez, Jr.,” which was used to publicize the dashcam video of the shooting. Commenting in a thread below the video, Aguilar wrote: “50 rounds to your dome moody”(sic). That comment falls well short of the legal threshold of being considered a “true threat.[9]” Yet Aguilar was arrested and charged with a felony[10] for a Facebook post expressing the hope that Moody would meet a violent end.

Aguilar’s post was an ill-considered expression of entirely understandable frustration over the official impunity enjoyed by the state’s enforcement caste. McCubbin’s comment, on the other hand, was a plausible threat to commit a summary execution. The former is being prosecuted as a crime. The latter will most likely be celebrated by punitive populists[11] as an expression of righteous rage.